IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Teresa L. Hatfield, :

Plaintiff, :

v. : Case No. 2:11-cv-0341

Commissioner of Social Security,: JUDGE GREGORY L. FROST

 Magistrate Judge Kemp

Defendant. :

REPORT AND RECOMMENDATION

I. Introduction

Plaintiff, Teresa L. Hatfield, filed this action seeking

review of a final decision of the Commissioner of Social Security

(“Commissioner”) which was issued following a remand from this

Court. The decision currently under review granted in part and

denied in part plaintiff’s September 6, 2002, application for

supplemental security income benefits. That application alleged

that plaintiff became disabled on November 1, 1991, as a result

of multiple medical disorders. The partially favorable decision,

issued by an Administrative Law Judge on February 26, 2009, found

that plaintiff became disabled on July 4, 2005, but was not

disabled before that date. That decision became the final

decision of the Commissioner when the Appeals Council denied

review on March 18, 2011.

Plaintiff thereafter timely commenced this civil action. 

The record of administrative proceedings was filed in this Court

on June 27, 2011. Plaintiff filed a statement of errors on

August 15, 2011, to which the Commissioner responded on September

19, 2011. Plaintiff filed a reply brief on September 29, 2011,

and the matter is now ripe for decision.

II. The Prior Judicial Decision

This case was previously before this Court. See Hatfield v.

Comm’r of Social Security, Case No. 2:06-cv-01073. In that case,

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the Court concluded that the Commissioner violated the “treating

physician” rule, see 20 C.F.R. §404.1527, by failing to

articulate sufficient reasons for discounting the opinions of Dr.

Hamill, plaintiff’s long-time treating psychiatrist. In

particular, the Court found that the Commissioner was not

entitled “to disregard his opinions simply because Dr. Hamill

relied to a great extent on the plaintiff’s own report of

symptomatology” and that the credibility of that self-report

should not have been questioned based on plaintiff’s ability to

sit through the administrative hearing or because those symptoms

purportedly conflicted with plaintiff’s description of her

activities of daily living. As the Court concluded, plaintiff’s

“testimony that she is unable to do any significant reading due

to memory deficits and that her social interactions are limited

to visiting a friend once every six months” - testimony credited

by the Commissioner - was not inconsistent with the symptoms she

reported. Consequently, the Court remanded the case for a

determination of how much weight should be afforded to Dr.

Hamill’s opinions. Hatfield v. Commissioner of Social Sec., 2008

WL 622967, *8-9 (S.D. Ohio March 6, 2008).

III. The Proceedings on Remand

After this Court’s remand order issued, the Appeals Council

vacated the ALJ’s prior decision and remanded the case to the ALJ

for further proceedings. The ALJ held a supplemental hearing at

which plaintiff, a medical expert, and a vocational expert all

testified. Additionally, a number of new exhibits were admitted,

including an updated list of plaintiff’s medications and

approximately 150 pages of medical records covering a time period

from 2005 through 2008. The Court will include a summary of the

pertinent new evidence here, as well as make reference to the

prior Report and Recommendation, which recapped the evidence

before the ALJ at the time of the prior administrative decision.

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IV. Plaintiff’s Testimony

Plaintiff’s testimony at the first administrative hearing,

briefly summarized, showed that plaintiff was a recovering

alcoholic who had also had some problems with cocaine use. She

had worked as a cashier at a Lowe’s store, at a factory for a few

months, as a bartender, and in a grocery store bakery. (Tr.

407). Her worst problems were migraine headaches and difficulty

in being around people, although she also had some physical

issues, including difficulty standing, walking, sitting, and

lifting more than 20 pounds. Her typical day consisted of

getting her son ready for school, going back to bed for several

hours, and then helping her mother clean house and do laundry. 

She also testified to daily crying spells. See Hatfield, supra,

at *1-2.

At the second administrative hearing, plaintiff testified

that she had gained about sixty pounds since the prior hearing. 

She attributed that weight gain in part to her depression. She

did not have any additional work experience. She viewed

depression as her primary problem, preventing her even from

caring for her son on a daily basis. She had changed

psychiatrists since the last hearing, but had not gotten any

better. She still experienced headaches daily, but they were not

all migraines. She also had a fear of being around people, which

began after she suffered a head injury in 1991. 

Plaintiff is able to do housework on an occasional basis. 

She has arthritis in her hips and pain in her back. Those

problems limit her ability to sit, stand and walk. She lies down

most of the day. She goes out to get her medication every other

week and may do some light grocery shopping at that time. Being

in a store is difficult due to her fear of people. (Tr. 667-81).

 V. The Medical Records

Because plaintiff was granted benefits based on a disability

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beginning on July 4, 2005, and because her claim of error raises

issues about the way in which Dr. Hamill’s opinions, which were

rendered in 2002 and 2003, were evaluated by the ALJ, the Court

will focus its attention primarily on Dr. Hamill’s records. 

Other medical records will be summarized to the extent that they

help to inform the Court’s opinion on whether the ALJ had

adequate reasons for assigning little weight to Dr. Hamill’s

views.

Previously, the Court described the records concerning

plaintiff’s mental impairment in this way:

Dr. Shiflett ... responded to a Bureau of Disability

questionnaire on September 24, 2002. He reported

having seen plaintiff for only a short period of time

in 2001. At that time, she suffered from major

depression and a panic disorder. She was treated with

medication management and psychotherapy. Her response

to treatment was poor. (Tr. 225-27). Dr. McGlone

responded to a similar questionnaire indicating that he

was treating plaintiff for major depression and that

she has always presented with a severely depressed mood

with a flat affect, poor communication, and poor

insight. He thought that she showed poor response to

therapy for depression but that her anxiety and chronic

headaches were controlled. He believed that she had no

ability to concentrate or think and that her

interaction with others was strained. Although she was

able to follow instructions, her ability to function

independently was poor. (Tr. 239-41). 

Plaintiff was seen by Dr. Hamill at the Scioto

Paint Valley Mental Health Center during 2002. He

believed she was suffering from a mixed bipolar state

with psychotic features as well as anxiety. On May 24,

2002, she described auditory and visual hallucinations

as well as suicidal thoughts. She also described

irritability, insomnia, racing thoughts, anger, and

mood swings. By June 28, 2002 she was feeling better

but had recently been placed on medication for panic

attacks. By September 24, 2002, she was denying any

psychotic symptoms but also was having difficulties in

her marriage. Her situation was essentially unchanged

by November 5, 2002. (Tr. 242-52). Dr. Hamill also

completed a mental functional capacity assessment

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indicating that plaintiff was markedly limited in her

ability to understand, remember, and carry out detailed

instructions, and was extremely limited in her ability

to maintain attention and concentration for extended

periods, maintain regular attendance and punctuality,

and complete a normal work day and work week without

interruptions from psychologically-based symptoms and

to perform at a consistent pace. (Tr. 253-54). 

Plaintiff underwent a psychological evaluation by

Dr. Tanley, a psychologist and neuropsychologist, on

December 6, 2002. She described mental problems

including poor memory as well as arthritis in her hip

and migraine headaches. She told Dr. Tanley she

stopped working at Lowe’s because she became pregnant. 

Her affect was flat and her eye contact was poor. A

sense of hopelessness, helplessness, and worthlessness

pervaded her speech. Test results placed her in the

borderline range of intelligence. The MMPI-II was

administered but was invalid, although Dr. Tanley did

not believe that it was from conscious over-reporting

of symptoms. He thought that her ability to relate to

others was mildly impaired, as was her ability to

understand and follow simple instructions and to

perform simple, repetitive tasks. She had a moderate

impairment in her ability to withstand the stress and

pressure of daily work. He rated her GAF at 50. (Tr.

255-58). 

* * *

The record also contains additional documents from

Dr. Hamill, plaintiff’s treating psychiatrist. Two

office notes dated December 26, 2002 and February 20,

2003 indicate that although plaintiff was having more

anxiety at the earlier appointment, she was doing

better with medications at the latter one. At the

latter appointment, Dr. Hamill described her diagnoses

as including bipolar disorder, depressed, in remission, 

a generalized anxiety disorder, and an adjustment

disorder with depressed and anxious mood. He also

completed a Psychiatric Review Technique Form

indicating that plaintiff had generalized persistent

anxiety accompanied by motor tension, autonomic

hyperactivity, apprehensive expectation, and vigilance

and scanning. In addition, he repeated his earlier

conclusion that she suffered from marked difficulties

in maintaining social functioning and extreme

difficulties in maintaining concentration, persistence

or pace. He also thought that she had poor or no

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ability to function in a large number of areas relating

to occupational adjustments. (Tr. 298-309). Her

counselor at Scioto Paint Valley Mental Health Center

also filled out a questionnaire indicating, among other

things, that plaintiff is easily distracted and

anxious, that she has a high need for rest, and that

she does not handle stress well at all and will either

become anxious or withdraw. (Tr. 310-14). 

* * *

Plaintiff continued to see Dr. Hamill at least

through May 27, 2005. His office notes for a two-year

period beginning in May, 2003 reflects that plaintiff’s

depression varied in severity from visit to visit. Her

generalized anxiety disorder continued relatively

unabated. On the last visit, she still described

anxiety and panic attacks. Dr. Hamill did comment that

her use of one of the drugs referred to in Dr.

Semmelman’s report, Librium, a benzodiazepine, was

appropriate because she was using it only as prescribed

and because it was helping her to function. (Tr. 345-

52, 384-85). 

On September 1, 2005, plaintiff consulted Dr.

Shiflett for a psychiatric evaluation due to her

depression and anxiety. She reported chronic mood

dysphoria as well as difficulties with attention,

concentration, and motivation. She also had

intermittent anxiety attacks. She appeared tearful and

her affect was constricted. Her attention and

concentration were impaired as was her short term

memory. His diagnostic impression was mood disorder

and major depressive disorder versus bipolar mood

disorder as well as a panic disorder. He rated her GAF

at 55 and planned to initiate psychotherapy. He also

changed her medications. (Tr. 388-90). 

Hatfield, supra, at *3-5. 

The only records which relate at all to plaintiff’s

condition in 2005 are some additional treatment notes from Dr.

Shiflett. They are somewhat difficult to read but show that in

December, 2005, plaintiff was still complaining of short-term

memory problems and symptoms of her personality disorder, and in

early 2006 she seemed sullen and withdrawn. Similar comments

appear in notes throughout 2006, indicating that there had not

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been much change in her condition. 

VI. The Vocational Testimony

Vocational experts also testified at both administrative

hearings. The first expert, Mr. Rosenthal, identified plaintiff

as having one transferable skill, cashiering, which would

transfer to jobs at the sedentary level. Physically, if she

could work as described by Dr. Nusbaum, plaintiff could perform

her earlier jobs as bartender and bakery helper, and some other

jobs as well. If she also had the psychological limitations

indicated by Dr. Tanley, she could work as a baker’s helper and

also could do a number of other unskilled jobs. 

A different vocational expert, Mr. Kiger, testified at the

second administrative hearing. He stated that if plaintiff had

to miss as much work after July 4, 2005, as indicated by Dr.

Nusbaum, she could not be employed. He also said that Dr.

Hamill’s 2003 evaluation is also not consistent with employment. 

(Tr. 689-91).

VII. The Partially Favorable Decision

The ALJ’s partially favorable decision is found at pages

455-468 of the administrative record. In that decision, the ALJ

concluded, first, that plaintiff suffered from severe impairments

including status post closed head injury with fractured mandible

and malunion, mild osteoarthritis of the left hip, morbid

obesity, migraine headaches, Percocet headaches, adjustment

disorder with depressed mood, borderline intelligence, and remote

history of alcohol and cocaine abuse. The ALJ also found that

these impairments did not meet or equal the requirements of any

section of the Listing of Impairments (20 C.F.R. Part 404,

Subpart P, Appendix 1).

Moving on to the next step of the sequential evaluation

process, the ALJ determined that plaintiff had the residual

functional capacity to lift 15 pounds frequently and 35 pounds

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occasionally, but could not climb ladders, ropes or scaffolds or

work at heights, be around hazardous machinery, or drive. 

Further, plaintiff was found to be mildly impaired in her ability

to relate to others and moderately impaired in her ability to

withstand work stress. From July 4, 2005 forward, she would also

miss two to three days of work per month. 

Reiterating a finding made in the first administrative

decision, the ALJ again concluded that plaintiff could not

perform any of her past work. However, before July 4, 2005, the

ALJ found that she was able to perform a substantial number of

sedentary, light and medium unskilled jobs. Therefore, she was

awarded benefits based on a finding of disability beginning on

July 4, 2005.

VIII. Plaintiff’s Statement of Specific Errors

In her Statement of Errors, plaintiff again raises a single

issue, which is very similar to the issue she raised in the prior

case. She asserts that the ALJ erred by giving no weight to Dr.

Hamill’s opinion, an error which, she claims, is compounded by

the ALJ’s failure to follow this Court’s mandate when it remanded

the case to the Commissioner. The fundamental question before

the Court is whether the Commissioner’s decision is supported by

substantial evidence.

 Standard of Review. Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary as to any

fact, if supported by substantial evidence, shall be 

conclusive. . . ." Substantial evidence is "'such relevant

evidence as a reasonable mind might accept as adequate to

support a conclusion'" Richardson v. Perales, 402 U.S. 389,

401 (1971) (quoting Consolidated Edison Company v. NLRB, 305

U.S. 197, 229 (1938)). It is "'more than a mere scintilla.'"

Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th Cir. 1976). 

The Secretary's findings of fact must be based upon the record as

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a whole. Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985);

Houston v. Secretary, 736 F.2d 365, 366 (6th Cir. 1984); Fraley

v. Secretary, 733 F.2d 437, 439-440 (6th Cir. 1984). In

determining whether the Secretary's decision is supported by

substantial evidence, the Court must "'take into account whatever

in the record fairly detracts from its weight.'" Beavers v.

Secretary of Health, Education and Welfare, 577 F.2d 383, 387

(6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB, 340 U.S.

474, 488 (1951)); Wages v. Secretary of Health and Human

Services, 755 F.2d 495, 497 (6th Cir. 1985). Even if this Court

would reach contrary conclusions of fact, the Secretary's

decision must be affirmed so long as his determination is

supported by substantial evidence. Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).

 The Court previously recited the standard applicable to

review of a decision which does not afford either great or

controlling weight to the opinion of a treating source, and

incorporates that recitation here. See Hatfield v. Commissioner

of Social Sec., 2008 WL 622967, *7 (S.D. Ohio March 6, 2008). 

Obviously, it is important to examine in some detail the ALJ’s

decision to see if the ALJ both had, and articulated, valid

reasons for the decision concerning the treating source opinions,

especially where, as here, that decision was to afford those

opinions no weight at all.

The ALJ’s discussion of Dr. Hamill’s opinions is found at

pages 461-62 of the record. First, the ALJ considered the

November, 2002 residual functional capacity assessment, which

found plaintiff “extremely limited” in a number of important

work-related areas. These findings were discounted by the ALJ

because they were “not consistent with or supported by the

medical evidence of record or Dr. Hamill’s own treatment notes”

and because he did “not provide sufficient clinical data to

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support his conclusions.” (Tr. 461). More specifically, the ALJ

pointed out that Dr. Hamill had not seen plaintiff in almost

three years before resuming his treatment of her in May, 2002;

that after some medication adjustments made in May, she was doing

better, and that this improvement continued through November of

that year; and that her depressive disorder was deemed mild.

Turning next to Dr. Hamill’s March, 2003 report, which

contains similar findings about plaintiff’s work abilities,

particularly her ability to relate to co-workers, deal with the

public, interact with supervisors, and maintain attention and

concentration, the ALJ found that “Dr. Hamill did not provide any

medical or clinical findings to support his assessment and his

assessment was also inconsistent with his own treatment notes.” 

Id. She observed that only one month before this assessment, Dr.

Hamill noted that plaintiff was doing well on her medications,

although she was continuing to experience stress in her home

life, and that most of the behaviors Dr. Hamill observed (things

like flow of conversation and speech, cognitive functioning,

insight, and judgment) were “ok.” (Tr. 461-62). 

The ALJ then compared Dr. Hamill’s opinions to the rest of

the record. She pointed out inconsistencies with the comments

and evaluations made both by Dr. Tanley, the consultative

examiner, and Dr. Shiflett, plaintiff’s new treating source. 

Next, she noted that Dr. Hamill’s opinions did not include a

function-by-function analysis and were therefore “vague and

imprecise.” (Tr. 462). She rejected any general statements to

the effect that plaintiff was “unable to work” as being vague and

invading the province of the Commissioner. She also found that

Dr. Hamill had not explained on what information he based his

opinions, and that if he relied primarily upon plaintiff’s selfreport of symptoms, his views could be undercut by the fact that

plaintiff was not entirely credible. Finally, the ALJ determined

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that Dr. Hamill had no special expertise in the area of

“reviewing an objective record and formulating an opinion as to

medical severity and limitations stemming from impairments, nor

did this doctor have access to all of the medical evidence that

is currently in the record.” Id. Ultimately, the ALJ adopted

Dr. Tanley’s opinion as best reflecting plaintiff’s mental

limitations, and incorporated his findings into both her residual

functional capacity determination and in the hypothetical

question posed to the vocational expert.

The Court can quickly dispose of plaintiff’s argument that

the ALJ did not follow the directives of this Court on remand. 

The only particular portion of the Court’s prior order which

plaintiff claims the ALJ violated was a statement to the effect

that the ALJ was “free not only to re-evaluate the record ... but

to obtain additional medical opinions if that would be helpful.” 

The ALJ chose not to obtain any additional medical opinions, but

rather ended up relying upon Dr. Tanley’s evaluation, rejecting

both Dr. Hamill’s opinions and the views of the state agency

reviewers which, as the Court noted in its prior order, were not

particularly useful. Since the Court did not specifically direct

the ALJ to obtain an additional medical opinion on the issue of

the severity of plaintiff’s mental impairment, the ALJ did not

violate the prior order. Rather, the issue is simply whether the

decision which the ALJ made has substantial support in the record

and complies with the treating physician rule. Although the

absence of an evaluation by a medical advisor (other than the

consultative examination done by Dr. Tanley) may well factor into

the Court’s decision, the ALJ’s failure to call an expert advisor

to testify as to plaintiff’s mental limitations is not, by

itself, grounds for relief.

Several of the reasons cited by the ALJ for giving no weight

to Dr. Hamill’s opinions are valid if they find support in the

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record. It is also important to keep in mind that the ALJ did

not simply reject completely the notion that plaintiff had no

mental limitations, but decided that they were not as severe as

Dr. Hamill indicated. In other words, his opinions were

discounted to the extent that they described a greater degree of

severity in plaintiff’s symptoms than did Dr. Tanley, but they

were not disregarded altogether.

One reason an ALJ might discount the view of a treating

mental health source is if that source based his or her opinion

primarily upon the plaintiff’s self-report of symptoms, but the

plaintiff is found not to be credible or reliable concerning the

extent of such symptoms. See, e.g., McGlothin v. Commissioner of

Social Sec., 299 Fed. Appx. 516 (6th Cir. October 31, 2008). The

ALJ cited that reason here, but plaintiff argues that the ALJ

never made an express finding that her report of symptoms was not

credible. That assertion is not borne out by the record,

however. The ALJ actually concluded that “[t]he claimant’s

subjective complaints are not supported by, nor are they

consistent with, the objective medical evidence.” (Tr. 463). In

particular, the ALJ noted that her description of disabling

symptoms prior to July 4, 2005, was inconsistent with a history

of non-aggressive treatment and good response to medications. 

Id. The ALJ also noted inconsistencies between plaintiff’s

description of her symptoms and her September, 2002 disability

report, where she stated she took her son to preschool, played

with him, prepared meals, did laundry, cleaned, read, went to

church, visited her mother, and said she had no problems getting

along with others. (Tr. 464). This constitutes the credibility

finding to which the ALJ referred when discussing Dr. Hamill’s

opinions, and plaintiff has not directly argued that this finding

was not supported by the record or otherwise erroneous.

A conflict between a treating source’s notes and that

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source’s opinions is another acceptable basis for discounting a

treating source’s views. See, e.g., Dawson v. Commissioner of

Social Sec., 2012 WL 833656 (6th Cir. Mar 13, 2012). That was

another of the reasons relied on by the ALJ in this case. 

Plaintiff does not specifically address this ground in her

statement of errors. Again, a review of the ALJ’s decision shows

that the ALJ focused on notes showing an overall improvement in

plaintiff’s condition during 2002 and 2003, and Dr. Hamill’s

description of plaintiff’s bipolar condition as “mild.” He also

indicated areas of normal functioning and a good response to

medication. His opinion of extreme limitations on her ability

during this same time can reasonably be viewed as contradictory

to, or not supported by, his own notes, and the ALJ, as the

primary resolver of such conflicts, was entitled to cite this

evidence in support of a decision to give his views less than

controlling weight.

The ALJ also cited to conflicting evidence - specifically,

the evaluation done by Dr. Tanley - as a reason for discounting

Dr. Hamill’s opinions. Again, plaintiff’s statement of errors

does not argue that the ALJ was not entitled to consider Dr.

Tanley’s report, even though he was not a treating source, and

the case law supports her decision to take a one-time examiner’s

findings into account, especially if they are based on other

evidence in the record, such as objective test results. See,

e.g., Tyrpak v. Astrue, 2012 WL 832450 (N.D. Ohio March 9, 2012). 

The ALJ pointed out that Dr. Tanley was the only mental health

professional to administer tests, and that he based his opinion

on these as well as plaintiff’s report of symptoms. She also

found the symptoms on which he relied to be supported by other

evidence, such as plaintiff’s own reports to other sources. This

type of conflict in the medical evidence is one which the ALJ is

generally entitled to resolve as long as there is evidence upon

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which a reasonable person could rely in reaching the same

resolution as did the ALJ. 

Plaintiff does argue that the ALJ simply repeated the same

error which led to the prior reversal by stating, again, that Dr.

Hamill’s opinions were unreliable because they did not stem from

any objective testing. This Court has stated that “[a] treating

medical source's opinions do not bind the Commissioner when

unsupported by detailed clinical and diagnostic test evidence.” 

Morgan v. Astrue, 2011 WL 3714781, *8 (S.D. Ohio July 20, 2011),

adopted and affirmed 2011 WL 3739022 (S.D. Ohio August 24, 2011). 

Certainly, objective tests are more pertinent in some realms of

medical practice than others, but the complete absence of such

testing is a factor which may be cited in support of a finding

that less than controlling weight should be given to the opinion

of a treating source, even if it may not properly be the only

factor upon which to base such a decision.

It is true that some of the ALJ’s rationale is either

irrelevant (for example, Dr. Hamill did not simply say plaintiff

was unemployable, but rated her functional capacity for

performing work-related activities) or not especially wellsupported by the record (for example, Dr. Hamill does appear to

have engaged in some function-by-function analysis, even though

the ALJ criticizes him for not having done so). Overall,

however, the Court concludes that the ALJ’s rationale is wellarticulated, so that there is no violation of the rule of cases

like Rogers v. Comm’r of Social Security, 486 F.3d 234, 242 (6th

Cir. 2007) and Wilson v. Comm’r of Social Security, 378 F.3d 541,

544 (6th Cir. 2004), and that it is sufficiently well-supported

by acceptable reasons for giving more weight to the findings of

Dr. Tanley than Dr. Hamill. Despite giving little or no weight

to Dr. Hamill’s opinions, the ALJ still found that plaintiff had

a severe mental impairment, and that she was moderately impaired

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in her ability to withstand ordinary work stress. Because a

vocational expert testified that there are jobs which someone

with plaintiff’s residual functional capacity, including the

mental limitations described by Dr. Tanley, could perform, the

ALJ’s decision that plaintiff was not disabled prior to July 4,

2005 is supported by substantial evidence. For that reason, the

decision should be affirmed. 

IX. Recommended Disposition

Based upon the foregoing, it is recommended that the

plaintiff’s Statement of Errors be overruled and that judgment be

entered in favor of the defendant Commissioner of Social

Security. 

 X. Procedure on Objections

 If any party objects to this Report and Recommendation,

that party may, within fourteen (14) days of the date of this

Report, file and serve on all parties written objections to

those specific proposed findings or recommendations to which

objection is made, together with supporting authority for the

objection(s). A judge of this Court shall make a de novo

determination of those portions of the report or specified

proposed findings or recommendations to which objection is

made. Upon proper objections, a judge of this Court may

accept, reject, or modify, in whole or in part, the findings

or recommendations made herein, may receive further evidence

or may recommit this matter to the magistrate judge with

instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to

object to the Report and Recommendation will result in a

waiver of the right to have the district judge review the

Report and Recommendation de novo, and also operates as a

waiver of the right to appeal the decision of the District

Court adopting the Report and Recommendation. See Thomas v.

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Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d

947 (6th Cir. 1981).

/s/ Terence P. Kemp 

United States Magistrate Judge

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